MR A MAYERS v THE CORPORATION OF LONDON & THE CITY OF LONDON POLICE [2001] UKEAT 0812_00_2305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0812_00_2305Case No Appeal No. EAT/0812/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A MAYERSAPPELLANTTHE CORPORATION OF LONDON & THE CITY OF LONDON POLICERESPONDENT
Before
Mr Justice LindsayLord Davies of CoityDate 23 May 2001
[1]APPEARANCES For the Appellant MR F EDWARD JNR (Non-practising Barrister) Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX MR JUSTICE LINDSAY We have before us by way of a preliminary hearing the appeal of Mr A Mayers in the matter Mayers v The Corporation of London and The City of London Police. Today Mr Fred Edward Jnr appears on behalf of Mr Mayers.[2]On 11 May 1999 Mr Mayers presented an IT1 for unfair dismissal, racial discrimination, breach of contract, breach of the Wages Act and wrongful dismissal. He identified a representative acting for him, Cain & Abel Law Firm, who continue to act for him, of which firm Mr Edward Jnr is a partner.[3]That firm sent a statement of claim to be attached to the IT1. It was comparatively short - about 1½ page - and whilst it does at points refer back to the beginning of Mr Mayers employment in 1986 and later to 1994, it is not one of those cases that contains a long chapter of incidents spread over all the intervening years until the dismissal, which in this case was 31 March 1999.[4]On 30 July 1999 an IT3 was presented by the Respondents denying Mr Mayers' claims in some fair detail. There was then an 8-day hearing at the Employment Tribunal spread over a period from 13 December 1999 to 1 March 2000. The decision was sent to the parties on 12 April 2000. It was a decision of the Tribunal at London North under the chairmanship of Mr G Flint. It was unanimous and it was that "the Applicant's claims are not made out and are dismissed" and then followed some considerable detail giving extended reasons spread over some 12¾ pages of close typing.[5]On 16 May the Employment Appeal Tribunal received Mr Mayers' Notice of Appeal, specifying 12 grounds of appeal and they have been to some extent amplified orally before us today and are set out also in the skeleton argument that Mr Fred Edward Jnr has prepared.[6]Ground 1 relates to the Respondent's treatment of a grievance which Mr Mayers had lodged during the course of his employment. The Tribunal dealt with this in their paragraph 10. They said:
"The next question if the Applicant's attempt to raise a grievance in regard to his redeployment at the front desk. This was raised by the Applicant in a letter of 3 December 1998 to be found at page 105 of the Respondent's bundle, in which the Applicant said that he wished to raise a formal grievance with the procedure in regard to the redeployment at the front desk at 26 Old Jewry. Ms Beechey replied in a letter of 7 December, to be found at page 109 of the Respondent's bundle, in which she said that the Applicant's grievance was invalid because there was no substantive vacancy at the front office to which he could be redeployed."
A little later they say:
"Our view on this is that the Respondents were wrong not to allow the Applicant to raise a grievance and that in refusing to allow him to do so Ms Beechey acted in a high-handed fashion. It seems to us that the Applicant properly exercised the grievance procedure and that the failure of the Respondents to allow the Applicant to exercise his right to raise a grievance by refusing to allow him to raise it because in their view there was nothing in their view he could raise a grievance about, was a wrong exercise of the procedure. The Applicant should have been allowed to go through the formal grievance procedure. What we have to decide, however, is whether the failure of the Respondents to allow the Applicant to raise a grievance amounts to racial discrimination. This we cannot accept. It does not seem to us that the Respondents were doing any more then maintain a position which in our view they ought not to have adopted. We cannot find, simply because the Applicant is black, that this is an instance of racial discrimination against the Applicant. Consequently we reject this claim."
[7]It is, of course, essential, if racial discrimination is to be found by way of direct discrimination, that the less-favourable treatment shall be "On racial grounds" - Section 1(1)(a). If there is less-favourable treatment and colour is present as a possible factor, it is, of course, open to the Tribunal to infer that the treatment was on racial grounds but there is no obligation to draw such an inference.[8]The Tribunal recognised that it had to look at the totality of the evidence and to draw inferences. What they say is this in their paragraph 11:
"We appreciate that, while the burden of proof of establishing racial discrimination is upon the Applicant, it is our duty to consider the totality of the evidence given by the Respondents and to decide whether there are any adverse inferences which can be drawn from that evidence. We have come to the conclusion, having listened very carefully to all the evidence given on behalf of the Respondents, that no such inferences can be drawn. The Respondents in our view have acted perfectly properly and in accordance with their policies and the only possible criticism is their failure to deal properly with the Applicant's grievance, in respect of which we cannot see any racial discrimination, as the evidence given by the Respondents was not so unsatisfactory that inferences could be drawn from it. Consequently, we find that there was no overall policy of discriminating against black people generally or the Applicant in particular as a black person and we reject this allegation."
[9]Mr Edward says in his skeleton under the heading Ground 1:
"The Employment Tribunal heard that a white employee with grievances was not denied access to the employer's grievance facilities or benefit even though the management was of the view that his complaints were futile. Yet this Appellant was denied such benefit or facilities for that reason. Yet the Employment Tribunal did not see this differential in treatment and in race as racially discriminatory in the treatment of the Appellant."
[10]It is for the Employment Tribunal to evaluate the evidence which it hears. It cannot be said that the facts relied on by Mr Mayers and as found by the Employment Tribunal were so compelling as to admit of no possible inference but that of racial discrimination and there can be no proposition that high-handedness is, without more, actionable racial discrimination, merely because it is dealt out to a black person by a white person, any more than for an employer to be unreasonable to a black person, without more, is actionable racial discrimination - consider Zafar v Glasgow City Council in the House of Lords.[11]Of course, either of such factors may furnish grounds for an inference of discrimination but whether the inference would be proper is, within broad limits, left to the Employment Tribunal which hears the evidence at greater length.[12]However, it would here have been undeniably better if the Tribunal had said why it was that it did not draw the inference. It did not draw an inference of racial discrimination notwithstanding the high-handedness that was spoken of and which the Tribunal held to have been the case but nowhere has it said why the inference was not drawn.[13]If there was, as Mr Edward asserts, an identified male comparator whose grievance was allowed to go forward despite his particular grievance being recognised by the Respondent to be futile, the failure of the Tribunal to say why the inference was not drawn and the failure to deal with the case of the comparator and the evidence given in relation to that comparator does suggest that it is arguable that here the Tribunal's reasons were not merely brief but were, in fact, truly inadequate.[14]There does seem to us to be an arguable ground of law here. We emphasise that at this stage all we are concerned about is what is arguable and so Ground 1, in our judgement, is to go to a full hearing. Grounds 2 and 3 also relate to the grievance procedure and if 1 goes forward, as it does, then so also should 2 and 3.[15]Ground 4 reads as follows:
"The Employment Tribunal erred when it intentionally or unintentionally stayed silent or failed to make a finding of fact on a crucial fact in issue with regard to the Applicant's complaints of less favourable treatment with regard to the post which both Kevin Smith and himself were respectively acting up. In that, when the two posts came to be made permanent, Kevin Smith was given a straight by-pass into the job and opposition not allowed to compete against him on the grade 4 job that he had been acting up. Whereas the Applicant was made to face competition with four whites on the grade 3 job he had been acting up, even though the Respondents could not offer any satisfactory explanation for this less favourable and differences in treatment. It is respectively submitted that it is an error of law by the Tribunal when it fails to make a finding of fact in a crucial fact in issue."
[16]Kevin Smith had been spoken of in paragraphs 5 and 9 of the extended reasons at some length. The Tribunal say in their paragraph 9:
"There was an advertisement for the job of Central Property Officer to which Kevin Smith was appointed after advertisement."
No mention is made of his being appointed without competition, in contrast to the treatment of Mr Mayers, but Mr Edward's complaint is here based on Mr Mayers at the time acting up to grade 4. But that was not the case; Mr Mayers was in fact grade 2 but acting up to grade 3. He was at JE2 as a substantive grade. The Tribunal so say in their paragraph 9 and in their paragraph 7 they say:
"We must also remember that at this point our finding is that the Applicant was simply acting up at the front desk. His job was that of JE2 grade and there is no evidence whatever to support the Applicant's allegation that his post had somehow become permanent as a front desk job at grade JE3."
[17]So there is Mr Mayers at JE2 acting up to grade 3 but, by contrast, Mr Smith was at grade 3 acting up to the grade 4 job of Central Property Manager. As to that the Tribunal say: "She…." That is Ms Beechey "…..said that there were two staff in the front office, one of whom was the Central Property Officer graded JE4 and the second was the Front Office Clerk Kevin Smith graded JE3. The Central Property Officer, Mr Harman, announced his intention to retire in July 1998 and it was decided that the work could be covered temporarily by Mr Smith, covering the role of Central Property Officer and the Applicant being deployed to the front office to assist.[18]So the basic premise of Ground 4, that Mr Smith and Mr Mayers were both acting up to grade 4 and that then, whilst Mr Smith passed without competition to a grade 4 job, Mr Mayers had to compete with others for a grade 3 job, is without a foundation of fact. No arguable point of law emerges out of Ground 4 and it is not to go forward.[19]Then we have Ground 5 which says:
"The Employment Tribunal's finding of no racial discrimination was contrary to the available evidence and to which the Respondents had no or any satisfactory explanation."
That, it seems to us, is far too vague to be admitted as asserting any arguable error of law. It may in fact add nothing to Grounds 1-3 which we have already allowed, but, as a separate ground, it is not to go forward.[20]Then we have Ground 6. However, at the opening of his address, Mr Edward Jnr abandoned that ground and we need not pay attention to it. Then we have Ground 7. This ground depends on an assertion that the Employment Tribunal looked at separate allegations of racial discrimination separately and failed, as they should have done under the Quoreshi case to step back and regard the totality of the evidence.[21]We have already cited the passage in their paragraph 11 where they say: "We appreciate that, while the burden of proof of establishing racial discrimination is upon the Applicant, it is our duty to consider the totality of the evidence given by the Respondents and to decide whether there are any adverse inferences which can be drawn from that evidence. So they were looking at the totality. Although there they refer to the totality of evidence given by the Respondents there is no doubt that they must have had in mind a regard to the totality of all the evidence given in the case.[22]We have no reason to disbelieve that assertion on the Tribunal's part that they did indeed look at the totality and so it seems to us that there is no arguable error of law in Ground 7 and the matter of that particular ground is not to go forward.[23]Ground 8 is this: "The Chairman misconducted the hearing when he frequently fell asleep or dozed off again and again through the hearing. That sometimes one had to make a sharp noise or jolt him awake. If that is true, it is of course deplorable and the Chairman's comments will be asked for but it will behove the Appellant, if any issue is made of this point, to identify any evidence or argument alleged to have been overlooked or at being at risk at being overlooked by reason of the sleeping or the dozing off, also to specify the dates and times of these incidents. That is to be done before the Chairman's comments are asked for and at the end of this judgement we will give a timetable and directions in this regard.[24]Then we have Ground 9. This refers to an incident which the Tribunal dealt with in their paragraph 12 where they say:
"We must also refer to the fact that someone, according to the Applicant, had complained about the smell from his cooking when he had brought a Caribbean meal to eat in the staff restroom and had cooked it in the microwave."
It is to be noted that the complainant, the person who didn't care for the smell, is not identified either as to which individual it was or indeed even as to his colour. Many questions would arise if there was anything to be found in this point. Was it the sort of smell that anyone might recognise as being unpleasant, because any food when maltreated can smell unpleasantly. It isn't found whether the complainant knew whose cooking was in or out of the microwave nor whether the complainant knew that it was a Caribbean meal that was being spoken of.[25]The ground of appeal says:
"The Employment Tribunal erred when they failed to or erred that the racial jibes directed to the Appellant by his white colleagues that his Afro-Caribbean which he brought to work for lunch "smells" did not amount to racial harassment, albeit this unwanted remark of racial nature was held by the Employment Tribunal to have been one instance (See paragraph 12 of Extended Reasons). The Tribunal said: "
Again, one instance of complaint about the smell from somebody's meal does not, in our view, amount to institutionalised racism by implying into the remark some suggestion that all cooking that all black people produces an offensive smell."[26]The Employment Tribunal, as we read it, did not say that simply because it was an isolated incident that therefore it could not be or was not racial discrimination. We cannot describe the Employment Tribunal's conclusion on this point as an impermissible option not open to them on the evidence. It seems to us that there is no error of law here; what is being dealt with is chiefly a matter of fact and we don't find the Tribunal's decision to be describable as perverse. Accordingly, this allegation is not to go forward.[27]Grounds 10 and 11 refer to complaints of what is called 'institutionalised racism'. It is a phrase not found in the 1976 Act. Even if one found institutionalised racism, depending on perhaps how it was defined, to exist in a particular circumstance, that would not necessarily prove any offence within the Act.[28]Of course, that it exists, depending on its definition, might well make the inference of actionable racial discrimination more likely than not or even found a case of direct racial discrimination. The onus remains on the Appellant to prove racial discrimination within the Act in relation to himself or herself.[29]The Employment Tribunal had in mind 'institutionalised racism'; they devote almost 3 pages to it. They describe the evidence sought to establish it. They conclude ultimately:
"Consequently, we find that we cannot find either from the evidence given on behalf or the Respondents by the various witnesses whom we heard, nor from the two isolated remarks and the complaint about the Applicant's cooking, that either adverse inferences should be drawn or that there was some sort of institutionalised racism which led to the Applicant not being accepted and not being considered for jobs."
We have no reason to think that that was not a conclusion open to the Employment Tribunal as a finding of fact. It must be remembered that the Employment Tribunal heard and saw the evidence given over many days. They are appointed by the legislation to compose a balanced "industrial jury", as it is frequently called, and they failed to detect what one might call the odour of racism here. It is a matter of them to assess the evidence which they heard. No arguable error of law appears in their approach under this head. So those Grounds 10 and 11 are not to go forward. It is to be noted also that when what is meant by institutionalised racism is referred to in paragraph 2 of Tribunal's decision towards the end of paragraph 2, what is being described, is not the Tribunal's own definition of institutionalised racism but what the Applicant claimed. At the end of paragraph 2 the Tribunal says:
"The Applicant claims that the actions against him amount to continuing discrimination and also alleges, on the basis of certain remarks which were made at various times (and the making of those remarks is not denied by the Respondents), that there is in the City of London Police and possibly the Corporation of London as well what could be described as 'institutionalised racism' namely an atmosphere which is hostile to black people and which will in the end lead to their dismissal on some pretext or other, such as in the case of this redundancy."
[30]It is a little unjust for the Appellant then to criticise, as Mr Edward does, the definition used by the Tribunal as that particular passage is not purporting to describe the Tribunal's definition but merely what the Applicant (now the Appellant) was claiming.[31]Ground 12 is the last of the grounds and that says this:
"The Employment Tribunal erred when they failed to consider or address their minds to the issue of just and equitable ground under Section 68 Race Relations Act 1976 to the Appellant's complaints in the circumstances, as the Respondents' white management repeatedly delay and delay and blocked the Appellant's internal grievances."
But there is no indication in the long extended reasons that the three-month time bar, which is what Section 68 deals with, in the event precluded any evidence or complaint at all. There is no suggestion that there was some evidence which was excluded because of the time bar and the long decision gives every appearance of being an assessment of everything which was put before the Employment Tribunal, with the possible exception of the grievance history, which we have already mentioned. But the grievance history is already sufficiently allowed to go forward to a full hearing as falling within Grounds 1-3. Otherwise Ground 12, as it seems to us, gives rise to no arguable error of law and is not to go forward.[32]So, drawing all those matters together, Grounds 1, 2, 3 and 8 go forward; Grounds 4, 5, 6, 7, 9, 10, 11 and 12 are not to go forward. It would be appropriate for us to give directions so that the hearing at the Employment Appeal Tribunal is effective. The Chairman will be asked, firstly, for his notes as to any oral evidence relating to a male white comparator being or not being treated more favourably than was Mr Mayers' in relation to the Respondents dealing with that comparator's futile grievance (see Ground 1).[33]Secondly, for notes of all oral evidence relating to the handling of Mr Mayers' grievance and his complaints to the Respondent on that score (see again Grounds 1, 2 and 3).[34]Then, to take up the point about the Chairman falling asleep, (and it is to be noted that it is only the Chairman who is said to have fallen asleep or to have dozed), Mr Mayers is, within 21 days of today, to supply to the Employment Appeal Tribunal and to the other side, evidence by way of affidavit, sworn by or on behalf of Mr Mayers, identifying the dates and times alleged of the sleeping and dozing off incidents complained of in Ground 8 and also identifying any evidence or argument which it is said, in consequence, was not given sufficient attention or risked not being given sufficient attention by the Tribunal as a whole.[35]The Respondents may then, within 14 days after receipt of the transcript of this judgement being sent to them, answer such evidence as has been furnished on behalf of the Appellant. The Respondent may answer it by affidavit and Mr Mayers side will then have a further 7 days to file evidence in reply, if so advised.[36]Only when this evidence on the dozing off or sleeping incidents is complete will it then be appropriate for that evidence and a note of Ground 8 to be sent to the Chairman for his comments. That, we would hope, would enable the Ground 8 issue to be properly laid before the Employment Tribunal when it hears the case.[37]Otherwise, general directions only need be given; skeleton arguments to be exchanged and also sent to the Employment Tribunal not less than 14 days before the hearing. The remaining issues ought to be listed for ½ a day in Category B. It would be appropriate that the Notice of Appeal should be amended so that it excludes all but the Grounds 1, 2, 3 and 8 which we have permitted to go forward.